LAWS(KER)-2012-8-398

ABDUL RASHEED M Vs. A M MOHANDAS

Decided On August 06, 2012
Abdul Rasheed M Appellant
V/S
A M Mohandas Respondents

JUDGEMENT

(1.) This revision petition is directed against the order dated 31/03/2012 in CMP No. 219 of 2012 of the Chief Judicial Magistrate Court, Thiruvananthapuram. CMP No. 219 of 2012 was filed by the revision petitioner herein alleging commission offence under S.500 read with S.34 IPC against accused Nos. 1 to 3 therein. As per the impugned order, the learned Magistrate took cognizance of the offence under S.500 IPC only against first accused therein and taken it on file as CC No. 284 of 2012 against the first accused. The revision petitioner assails the order only to the extent of refusal to take cognizance of offence as against accused Nos. 2 and 3 therein.

(2.) I have heard the learned counsel for the petitioner and the learned Public Prosecutor. Essentially, the contention of the revision petitioner is that there is total disregard to the provisions under S.203 CrPC by the learned Magistrate while passing the impugned order. No two views are possible in regard to the imperativeness imbedded in S.203 CrPC to briefly record reasons for dismissing a complaint. In this case, as against the first accused / the first respondent herein, the learned Magistrate took cognizance of the offence; but, virtually, refused to take cognizance of offence as against accused Nos. 2 and 3. It is not stated in the impugned order that the complaint as against accused Nos. 2 and 3 is dismissed. In this context, it is relevant to refer to the decision in Prakasan v. State of Kerala reported in 2008 (1) KLT SN 39 (Case No. 41), 2007 (4) KHC 983 : 2008 (1) KLD 67 : ILR 2008 (1) Ker. 17 : 2008 (1) KLJ 45 : 2008 CriLJ 1272 of this Court and the same, in so far as it is relevant reads thus:

(3.) Evidently, while proceeding against the first accused after taking cognizance under S.500 IPC and taking the case on file as CC No. 284 of 2012, there is absolute absence of any whisper about the case against accused Nos. 2 and 3. There can be no legal impediment in taking cognizance of an offence only against one of the accused and register case against the said accused. However, in terms of the provisions under S.203 CrPC, it is imperative on the learned Magistrate to record briefly the reasons for dismissing the complaint. The learned counsel for the petitioner relies on a decision of this Court in Fr. Abraham v. Thomas reported in 1989 KHC 22 : 1989 (1) KLT 85 . To bring home the point, the petitioner also relies on a decision of the Hon'ble Apex Court in Chandra Deo Singh v. Prakash Chandra Bose reported in 1963 KHC 633 : AIR 1963 SC 1430 : 1964 (1) SCR 639 : 1963 (2) CriLJ 397. As noticed earlier, in the decision in Prakasan's case (supra), it has been held that a Magistrate taking cognizance of only some of the offences or if Magistrate were to take cognizance of all those offences only against some of the accused persons omitting the others, he has to give reasons. The Hon'ble Apex Court in Chandra Deo Singh's case (supra) held that the complainant is entitled to know why his complaint stands dismissed with a view to consider whether to approach the Revisional Court. Keeping him ignorance of the reasons clearly would prejudice his rights to move the' revisional Court and when he takes up the matter to revisional Court, it would render tasks before the Court, more particularly, in view of the limited scope of the provisions under S.438, S.439 (S.397 and S.401 respectively of the new Code). In fact, it is relying on said decision of the Hon'ble Apex Court that the decision in Fr. Abraham v. Thomas, 1989 KHC 22 was rendered. The situation obtained in this case is squarely covered by the decision in Prakasan's case (supra). In that case, a complaint was filed alleging commission of offence under the Explosive Substances Act against certain persons; but, cognizance was taken only against some of them. Considering the rival submissions, this Court held that the learned Magistrate was bound to give reasons in terms of the provisions under S.203 CrPC for the piecemeal dismissal of the complaint.